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CAV ISSUES THREE EN BANC OPINIONS

On Tuesday, April 12, 2005, the Court of Appeals of Virginia handed down three opinions in cases heard and decided by the full court. En banc opinions are always worth some study, as they represent the views of the court as a whole, not merely a panel. The three decisions are briefly analyzed below.

In Moses v. Commonwealth, a defendant learned that often, the panel giveth, and the full court taketh away. Moses had been convicted at trial of making an obscene display or exposure. The facts were essentially undisputed; on more than one occasion, Moses had approached young girls in department stores and had begun to masturbate while talking to them. He explained to investigators that he did this as an outlet for his sexual urges, and acknowledged that he had done this on 40 or 50 occasions.

But Moses never exposed himself to any of the girls; he always kept his clothing on, and masturbated with his hand inside his pants. At trial, his attorney claimed that one could not make an obscene display if one never displayed body parts. That approach got Moses nowhere at trial, but it succeeded before a panel of the Court of Appeals in August 2004; that panel reversed the judgment and dismissed the prosecution, in a 2-1 ruling. The full court speedily granted the Commonwealth’s petition for rehearing en banc.

On Tuesday, the full court upheld the conviction, holding that an obscene display did not necessarily require a display of flesh. The majority reviews the history of the statutory ban, tracing its antecedents back to Blackstone’s Commentaries and two 19th Century Virginia legal treatises. The statute itself, reasons the majority, prohibits the “obscene display or exposure” of one’s private parts; hence one may make an obscene display without necessarily exposing himself. The opinion also cites the example of display of a firearm, which may be accomplished without taking the weapon out of one’s pocket.

The dissent is led by Judge Benton, who had authored the majority opinion for the panel in August 2004. It takes the position that display necessarily involves showing something, and one cannot display his person or private parts while keeping them hidden from view. It notes that Moses’s penis was never visible, not even in an outline through his pants. It further warns that the majority’s interpretation might subject a person to prosecution for scratching himself in public, with no lewd intent whatsoever.

Another defendant fared better with the full court. In Gonzales v. Commonwealth, the court reverses convictions for rape and forcible sodomy, based on the prosecution’s introduction of evidence of other crimes, ostensibly to prove intent. Gonzales had raped and sodomized an exotic dancer whom he had hired in response to a display advertisement. At trial, the Commonwealth moved to introduce testimony from two other women who had been similarly victimized by Gonzales. The trial court admitted the evidence, to show Gonzales’s intent.

The appellate court reversed, with the simple holding that the assailant’s subjective intent is not an element of the offenses charged. The testimony therefore became “other bad acts” evidence that was, accordingly, inadmissible. In so holding, the court relies on last year’s decision by the Supreme Court in Commonwealth v. Minor. The court also rejects the Commmonwealth’s assertion that the error was harmless, finding the tesatimony to be “highly prejudicial.”

In dissent, Judges McClanahan and Kelsey argue that the Minor ruling does not go as far as the majority extends it. The dissent reasons:

“. . . [T]he question presented then becomes whether the trial judge abused her discretion in admitting the evidence under the unique facts of this case. I do not believe she did. The prosecutor offered the evidence to show the defendant’s intent to use force. The other crimes evidence showed a similar pattern of intent to use force. These factual similarities in the use of force take the proof of other crimes outside the maxim prohibiting its use as mere propensity evidence.”

The dissent thus focuses on the distinction between general intent (for example, to commit rape) and specific intent (in this case, the intent to use force). The dissent reasons that since Gonzales had claimed before trial that the sexual encounter was consensual, the Commonwealth should be permitted to show that he had committed other rapes under similar circumstances.

Finally, the court affirms a panel’s November 2004 holding in Neely v. Commonwealth, without issuing a new opinion. The issue here revolves around the interpretation of Code §19.2-303, which permits the trial court to modify a felony sentence at any time before the prisoner has been transferred to the Department of Corrections. Neely filed a petition for such a modification; the trial court had ruled that it had no jurisdiction to consider it.

Ordinarily, such analysis should be fairly straightforward. Transfer from a local facility, such as a county jail, to the state’s prison system can sometimes be delayed by a few months, but the time of the transfer is almost always readily ascertainable. The rub here is that Neely had received a two year suspended sentence in 1997 on cocaine charges. During his probationary period, he pleaded guilty in federal court to bank robbery charges; he thereupon served four years in federal custody. This conviction triggered a revocation of Neely’s suspened prison term on the drug conviction in state court. Four years later, as he was about to be released from federal custody to the willing hands of the Commonwealth, he asked the state trial court to modify his sentence, citing the statue mentioned above.

The trial court declined to consider his petition, holding that it came too late for that court to have any jurisdiction. The appellate court reversed, holding that under the literal wording of the statute, Neely had not yet been delivered to the Commonwealth’s Department of Corrections. The majority brushes aside the dissent’s argument that this interpretation could extend the trial judge’s control over the sentencing order “for decades.”

Note that this ruling merely means that Neely can ask the trial court to modify his sentence. There is, of course, no way to evaluate the merits of such a petition at this juncture, and this ruling may accordingly be only symbolic for Neely. But it does clarify the appellate court’s view of the jurisdictional limit of the trial court’s control of sentencing orders.